Defendant also argued both that the videotape of K's interview with police
and the testimony of the grand jury clerk were inadmissible hearsay, and that their
admission would violate his rights to confront witnesses against him under Article I,
section 11, of the Oregon Constitution and the Sixth Amendment to the United States
Constitution. The state argued that the evidence should be admitted over defendant's
hearsay and state and federal confrontation-clause objections because defendant had
forfeited those objections due to the wrongful nature of his conduct towards K. See, e.g.,
State v. Mack, 337 Or 586, 592 n 8, 101 P3d 349 (2004); State v. Page, 197 Or App 72,
80-81, 104 P3d 616 (2005) (both recognizing the common-law doctrine known as
"forfeiture by wrongdoing").

Defendant's second and third assignments of error concern the admission of
statements that K made during her videotaped police interview and to the grand jury,
respectively. We first consider whether K's statements were properly admitted under OEC
804(3)(f). We review the trial court's decision to admit the evidence for legal error. See
State v. Nielsen, 316 Or 611, 618, 853 P2d 256 (1993) (explaining that we consider
statutory questions before constitutional claims);
State v. Rodriguez-Castillo, 210 Or App
479, 488, 151 P3d 931 (2007) ("We review for errors of law the trial court's legal
conclusion as to whether the statement is admissible under an exception to the hearsay
rule."). Hearsay is "a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted." OEC
801. It is inadmissible unless it falls within one of the exceptions set out in OEC 801 to
806 or as "otherwise provided by law." OEC 802.

Defendant contends that the trial court erred by applying OEC 804(3)(f) to
K's statements because those statements are "specifically covered" by another exception,
namely, OEC 803(18a)(a). We agree. OEC 804(3)(f) applies only if a witness was
unavailable and the statement to be admitted is

"not specifically covered by any of the foregoing exceptions but having
equivalent circumstantial guarantees of trustworthiness, if the court
determines that (A) the statement is offered as evidence of a material fact;
(B) the statement is more probative on the point for which it is offered than
any other evidence which the proponent can procure through reasonable
efforts; and (C) the general purposes of the Oregon Evidence Code and the
interests of justice will best be served by admission of the statement into
evidence."

The applicability of OEC 803(18a), however, is not limited to situations in
which a declarant is available. See State v. Campbell, 299 Or 633, 702, 705 P2d 694
(1985) ("[T]he legislature, in placing OEC 803(18a) as an OEC 803 exception, must have
decided that the availability * * * of the declarant [] was immaterial."). Thus, we must
determine whether the videotaped police interview of K and the grand jury clerk's
testimony fall within the category of statements "specifically covered by" OEC 803(18a).
State ex rel Children's Serv. Div. v. Page, 66 Or App 535, 539, 647 P2d 1196 (1984)
("[W]here there is a specific hearsay exception applicable to a clearly defined category of
evidence * * *, but the evidence fails to satisfy the requirements of the specific exception,
the evidence should not be admitted under the residual exception." (Internal quotation
marks and citations omitted)).

OEC 803(18a) provides in relevant part:

"The following are not excluded by ORS 40.455, even though the
declarant is available as a witness:

"* * * * *

"(18a)(a) A complaint of sexual misconduct[ or a] complaint of
abuse as defined in ORS 107.705 or 419B.005 * * * made by the witness
after the commission of the alleged misconduct or abuse at issue. Except as
provided in paragraph (b) of this subsection, such evidence must be
confined to the fact that the complaint was made.

"(b) A statement made by a person concerning an act of abuse as
defined in ORS 107.705 or 419B.005 * * * is not excluded by ORS 40.455
if the declarant either testifies at the proceedings and is subject to cross
examination, or is unavailable as a witness but was chronologically or
mentally under 12 years of age when the statement was made * * *.
However, if a declarant is unavailable, the statement may be admitted in
evidence only if the proponent establishes that the time, content and
circumstances of the statement provide indica of reliability, and in a
criminal trial that there is corroborative evidence of the act of abuse and of
the alleged perpetrator's opportunity to participate in the conduct and that
the statement possesses indicia of reliability as is constitutionally required
to be admitted."

OEC 803(18a) applies to statements made by the victim of a sex crime about that crime,
including statements made by child victims, elderly victims, and developmentally
disabled adults. OEC 803(18a)(d); Campbell, 299 Or at 641-46. In Page, the state
sought to admit the testimony of a child psychologist and case worker narrating the
details of a complaint of sexual misconduct allegedly made by the defendant's eight-year-old daughter. Although the psychologist and case worker were permitted to testify that
the daughter had made a complaint of sexual misconduct under OEC 803(18a)(a), OEC
803(18a)(b) prohibited the witnesses from describing the sexual misconduct. Thus, we
held that the trial court erred by permitting the witnesses to testify under the residual
hearsay exception about the details of what the daughter had told them because that
evidence was specifically excluded by OEC 803(18a). 66 Or App at 540.

Here, defendant was charged with multiple counts of rape, sodomy, and
sexual abuse as those acts are defined in ORS chapter 163. Therefore, K's statements to
the police and to the grand jury inculpating defendant for those crimes fall within the
"clearly defined category of evidence" covered by OEC 803(18a). Page, 66 Or App at
539 (internal quotation marks omitted); see also OEC 803(18a)(a) (permitting the
admission of a hearsay statement that is "[a] complaint of sexual misconduct[ or a]
complaint of abuse as defined in ORS * * * 419B.005 * * * made by the witness after the
commission of the alleged misconduct or abuse at issue"); ORS 419B.005(1)(a) (defining
"abuse" to include rape, sodomy, and sexual abuse as those acts are defined in ORS
chapter 163).

Although both the police detectives who interviewed K and the grand jury
clerk who recounted K's testimony would have been permitted under OEC 803(18a)(a) to
testify "to the fact that the complaint was made," under the rule, their testimony should
have been confined to that fact alone. The details of a complaint of sexual misconduct or
abuse may not be admitted under OEC 803(18a) unless the witness is available or, if the
witness is unavailable, "chronologically or mentally under 12 years of age when the
statement was made." OEC 803(18a)(b). Because K was unavailable and 16 years of age
at the time she made the statements to the police and to the grand jury, the details of her
statements were not admissible under OEC 803(18a) or the residual exception of OEC
804(3)(f). See Page, 66 Or App at 540.

Evidentiary error is not presumed prejudicial, and the burden is on a
defendant who appeals his conviction to show that a court's error affected a substantial
right. See Or Const, Art VII (Amended), § 3; OEC 103(1);
State v. Torres, 206 Or App
436, 445, 136 P3d 1132 (2006). An evidentiary error affects a defendant's substantial
rights when, based on the totality of the record, the error affected the jury's verdict. If
there is little likelihood that the error affected the jury's verdict, then the evidentiary error
was harmless. SeeState v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003).

To determine whether an error was harmless, we examine the record as a
whole and consider the nature of the error and the context in which it occurred. Torres,
206 Or App at 445. For instance, if the erroneously admitted testimony is merely
cumulative of other evidence that established the same fact, then the evidence is less
likely to have affected the verdict. See Davis, 336 Or at 33-34. Similarly, the less
substantial the evidence of guilt, the more likely it is that an error affected the result.
State v. Roller, 201 Or App 166, 173, 118 P3d 804 (2005).

Although under the Oregon Constitution a verdict must be affirmed if there
is little likelihood that the error affected it, for violations of federal constitutional rights,
the error must be harmless beyond a reasonable doubt. See State v. Walton, 311 Or 223,
231, 809 P2d 81 (1991). In determining whether an error is harmless beyond a
reasonable doubt, we consider the importance of the improperly admitted testimony in the
prosecution's case, whether the testimony was cumulative, the presence or absence of
evidence corroborating or contradicting the testimony of the witness on material points,
and the overall strength of the prosecution's case. State v. Cook, 340 Or 530, 135 P3d
260 (2006) (quotation marks and citation omitted).

Viewing the record as a whole, we conclude that the errors were harmless
under any standard because the evidence was cumulative and uncontradicted and there
was other substantial evidence of defendant's guilt. After K had been interviewed at the
police station, she told defendant over the phone that the police "knew that we had had
sex at least five times, and they had known that we had had oral sex at least ten times."
Thus, from the properly admitted audiotaped phone call, the jury heard K recount to
defendant the substance of what she told police (and later the grand jury). The jury also
heard the properly admitted audiotape of a phone call during which K told defendant, "Do
you realize that there is not a piece of furniture in your house that I haven't had sex with
you on?" Defendant replied, "Yep," thereby adopting K's statement. Moreover, the
emergency room doctor who treated both K and defendant testified that defendant
admitted that he and K had engaged in a "sexual affair."

Defendant's agreement that the 12 audiotaped conversations showed that
defendant and K were romantically involved, as well as his argument that the jury should
not rely on K's statements to police and the grand jury, further support our conclusion that
the evidence was not likely to have affected the jury's verdict. In closing, defendant's
counsel argued to the jury that defendant and K "fell in love, and it was genuine love."
Counsel also argued that the jury should question the reliability of K's statements to
police because the officers did not follow the protocol for interviewing children when
investigating cases of suspected child abuse, and that the jury should distrust the grand
jury clerk's testimony because the state destroyed the notes of the other grand jurors.

In addition to the significant amount of direct evidence that K and
defendant had engaged in intercourse and sodomy, there was substantial circumstantial
evidence of defendant's guilt. Several witnesses testified that K and defendant were
rumored to be sexually involved, and that their relationship "just didn't seem right." The
jury also heard the telephone conversations between defendant and K, in which the
romantic nature of those calls was unmistakable. During those calls, defendant and K
often discussed their love for each other. They also discussed how they might meet in
secret, and defendant's neighbor testified that she once saw K climb the fence into
defendant's backyard, as if she were trying to avoid detection. The jury also heard K and
defendant discuss how to keep their stories straight, and they viewed a videotape of
defendant's police interview in which he repeated the story that he and K had agreed
upon. Defendant himself admitted to police that he had played a role in assisting K to
obtain birth control pills by allowing her to use his address. Although defendant claimed
those pills were for K's friend, K's stepfather testified that several of the pills were
missing when K's mother confiscated them from K. Lastly, the evidence established that
K and defendant had entered into and attempted to carry out a "suicide pact." We
conclude that there is little likelihood that the error in admitting K's statements to the
grand jury and to the police affected the jury's verdict because those statements were
cumulative of other evidence, there was no other evidence contradicting them, and there
was substantial other evidence of defendant's guilt.

In his fourth, fifth, and sixth assignments of error, defendant argues that the
trial court ran afoul of the Sixth Amendment, as interpreted in Apprendi v. New Jersey,
530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000), and Blakely v. Washington, 542 US
296, 124 S Ct 2531, 159 L Ed 2d 403 (2004), when it imposed consecutive sentences,
failed to merge his multiple convictions for the same offenses, and reconstituted his
criminal history score. In State v. Tanner, 210 Or App 70, 86-87, 150 P3d 31 (2006), we
considered whether imposition of consecutive sentences based on facts not found by a
jury or admitted to by a defendant was unconstitutional under Apprendi and Blakely. We
concluded that the jury-trial right of the Sixth Amendment of the United States
Constitution did not extend to facts that concern the manner in which sentences for
separate crimes should be served. Thus, the trial court did not err by imposing
consecutive sentences on counts two and three after finding that each offense constituted
a separate criminal episode. See ORS 131.123(2);
State v. Carson, 211 Or App 606, 156
P3d 71 (2007) (applying Tanner to ORS 137.123(2)).

We also conclude that the trial court did not err by declining to merge
defendant's convictions for multiple violations of the same statutory provision. The
merger statute, ORS 161.067(3), requires merger of multiple violations of the same
statutory provision involving a single victim only if the violations were committed during
the same conduct or criminal episode. Here, the jury found that each criminal act was a
"separate act" after being instructed by the trial judge that a "separate act" is "an act that
does not arise from the same continuous and uninterrupted conduct as another act."
Accordingly, the jury found that each offense constituted a separate criminal episode.
See ORS 131.505(4) (defining "criminal episode" as "continuous and uninterrupted
conduct that establishes at least one offense and is so joined in time, place and
circumstances that such conduct is directed to the accomplishment of a single criminal
objective"); see alsoState v. Knight, 160 Or App 395, 403, 981 P2d 819 (1999) ("The
phrase 'same act or transaction' is synonymous with the term 'criminal episode.'" (citing
State v. Boyd, 271 Or 558, 565-66, 533 P2d 795 (1975))). It follows that the trial court
did not err by declining to merge defendant's convictions.

Based on the jury's finding that each offense constituted a separate criminal
episode, we also conclude that the trial court did not err by reconstituting defendant's
criminal history score when imposing sentence on counts two and three. See Knight, 160
Or App at 403 ("[A] defendant's criminal history can be enhanced by a conviction based
on a concurrently sentenced offense provided that the offenses do not arise from "the
same transaction or series of specifically connected transactions." The phrase 'same act
or transaction' is synonymous with the term 'criminal episode.'" (internal quotation marks
omitted; citing State v. Bucholz, 317 Or 309, 315, 855 P2d 1100 (1993), and Boyd, 271
Or at 565-66)).

Affirmed.

1. This action was commenced before the effective date of the 2005 revisions to the
Oregon Evidence Code. All subsequent references to provisions of the Oregon Evidence Code
refer to the 2003 version of those statutes unless otherwise noted.

2. Defendant also argues on appeal that Capell is distinguishable on its facts from
this case. At trial, he argued that K's mother was acting on behalf of the state when she recorded
the conversations, and that therefore the audiotapes were subject to the exclusionary rule.
Nevertheless, he candidly told the trial court that

"the Court of Appeals has resolved this issue [the state-actor issue] squarely
against me. I believe that the Court of Appeals was in error, and in the event
that we're ever in a position to ask them to overturn its decision, have the
Oregon Supreme Court do that. This--the purpose of this exercise is to make
a record so that we don't waive anything. But I should lose it according to the
state of the law as exists."

Pursuant to the argument presented by defendant, the trial court's order denying defendant's
motion to suppress focused entirely on whether K's mother "act[ed] on behalf of, or act[ed] as an
agent, of the state" when she recorded the calls. We conclude that, under such circumstances,
defendant did not preserve at trial the issue of whether Capell is distinguishable, and we do not
consider it on appeal. ORAP 5.45(4); State v. Wyatt, 331 Or 335, 343, 15 P3d 22 (2000) ("[A]
party must provide the trial court with an explanation of his or her objection that is specific
enough to ensure that the court can identify its alleged error with enough clarity to permit it to
consider and correct the error immediately, if correction is warranted."); id. at 344-46 (appellate
courts have an independent obligation to determine whether an argument advanced on appeal
was preserved at trial).

3. The trial court apparently did not revisit this issue when ruling on the
admissibility of K's statements to the grand jury as recounted by the grand jury clerk. Those
statements were also "specifically covered" by OEC 803(18a) and thus, contrary to the trial
court's conclusion, inadmissible under OEC 804(3)(f).

4. The state raised this contention to the trial court in response to both defendant's
hearsay objections and his confrontation clause objections. Following defendant's trial, the
legislature codified the common-law doctrine as OEC 804(3)(f) (2005) (applicable if a defendant
causes the death, incapacity, or incompetence of witness) and OEC 804(3)(g) (2005) (applicable
if a defendant otherwise wrongfully caused a witness to be unavailable) in the context of the rule
against hearsay. Or Laws 2005, ch 458, § 1. Those amendments to OEC 804 "do not apply to an
action or proceeding commenced before [January 1, 2006]." Id. at § 2. This action was
commenced when defendant was indicted on January 22, 2003. See ORS 131.135 ("A
prosecution is commenced when a warrant or other process is executed * * *."). Accordingly,
we need not construe OEC 804(3)(g) (2005).